In terms of constitutional law, jurisprudence regarding the Second Amendment and the right to keep and bear arms is still relatively new. In 2008, the Supreme Court decided District of Columbia v. Heller, in which it decided that the Second Amendment did, in fact, protect an individual right to keep and bear arms for protection in the home. Just two years later, the Supreme Court incorporated those protections to the states in McDonald v. City of Chicago, and in 2022 the Supreme Court held that Americans have a right to bear arms outside the home as well in New York State Rifle & Pistol Association, Inc. v. Bruen.
Under Bruen, the Supreme Court held that any firearm restriction must fit within the history and tradition of firearm regulation in our country in order to be valid. In other words, firearm regulations must find a historical analog within our nation’s history to remain in line with the Second Amendment requirements of the Constitution.
However, Bruen is facing a new challenge. In a case recently heard by the Supreme Court called United States v. Rahimi, Zackey Rahimi, who was subject to a domestic violence protective order, was searched in connection to various shootings around town, and the police found guns in his possession. Rahimi was then charged under 18 U.S.C. § 922(g)(8), which prohibited him from possessing a firearm due to the existing protective order against him.
Now, Rahimi is facially challenging the constitutionality of that statute, arguing that under Bruen’s framework, there exists no historical analog for stripping away his Second Amendment rights, since the restraining order was issued ex parte, and therefore, the statute is unconstitutional. The 5th Circuit agreed with Rahimi, and the Supreme Court granted cert and heard the case late last year.
At oral argument, most of the justices appeared friendly to the argument that Rahimi isn’t the sort of person who should own a weapon—but problems remain when a government body can deprive a citizen of his constitutional rights without due process of law, such as when there is a domestic violence protective order issued ex parte.
As such, the Supreme Court stands on the verge of another development in the still-nascent jurisprudence surrounding the Second Amendment. As John Adams once said, “our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” Americans should watch this case carefully and hope that the Court’s constitutional majority will abide by a standard that protects the ability of law-abiding Americans’ constitutional right to keep and bear arms.
